8 May 2011

Building off of a post I wrote here in November, this past spring I wrote a (lenghty) paper examining the recent “Operation In Our Sites” and its implications for free speech, copyright policy, and practical enforcement of rights online. The paper now has its own SSRN page here. Hope you can all check it out and share thoughts. Thanks.

26 April 2011

I’m spending the next couple of days back in Boston at the Rethink Music conference, with a humbling collection of music industry minds. I wanted to mark the occasion by bringing back a thesis about which I wrote extensively last year, following several discussions at the Future of Music Coalition Policy Summit in October 2009. In response to perceived market failures in the licensing market for sampling music, I proposed that Congress should develop a statutory license for sampling. The details of this proposal are below. The paper I drafted received a warm response from my peers (thank you), but needs substantial revision in light of Peter DiCola and Kembrew McLeod’s excellent new book, and my own Sisyphean push for excellence. I wanted to share my thoughts here and take this time to solicit some feedback. So here they are. Conference attendees, non-conference attendees, friends, strangers: rip this apart.

The seizure, entitled “Operation in Our Sites II” (part I was a small-scale seizure over the summer), relied on power granted under civil forfeiture statutes: sections 981 and 2323 of Title 18 are cited, but really it’s all about 2323, with 981 providing the procedure. Assuming they followed the letter of the law here, this means that someone in the Attorney General’s office filed what is tantamount to a criminal warrant, and then obtained custody and title of the goods in the name of the Attorney General and the United States. This is shocking and surprising for a number of reasons. This is exactly the concern raised by groups opposing the Combating Online Infringements and Counterfeits Act – that the government would be able to “blacklist” websites “dedicated to infringing activity,” and then take them off the Internet. We also are asserting domain over the Internet itself, something which no other country has tried to do. Big questions come up here, namely Can the United States do this as a matter of fact? Can they do this as a matter of authority?

To examine the U.S. authority in doing this would be far too much to take on right now with finals, so I’m going to focus more on the facts. To do this requires a quick crash course on Internet architecture. Here goes:

The Internet is driven by numbers, IP addresses specifically. If you type “204.11.50.136” in your browser you will see the website for the blog Boing Boing. This is Boing Boing’s web address. Of course, we wouldn’t want to have an Internet where we needed to memorize IP addresses like phone numbers, so we developed a naming system to organize and label these addresses. This is the Domain Name System, or DNS. This system consists of a series of 13 “root servers,” located throughout the globe, which tell all computers where to go to look up the addresses of sites ending in “.com,” “.net,” “.edu,” and so forth. These root servers are redundant copies of each other, designed so that if one goes down the others can still direct traffic. Each of these top level domains (“.net” in our example) contains another server (and backups thereof) which stores a list of every website that ends in that extension and its corresponding IP address. This is of course a gross simplification, but when we type in “boingboing.net,” our computer looks to the root server to find the “.net” server, then goes to the “.net” server and asks where to go for “boingboing.” That server responds “204.11.50.136,” and the connection is made.

So what does it mean to “seize” a website? I am hunting down the civil forfeiture warrants used in Operation in Our Sites II, but it seems to that once they convinced a judge that there was probable cause to issue this forfeiture order, the government went to the DNS servers involved in translating (“resolving” in the lingo of the industry) the websites at issue, and had them change their destination to the Justice Deparment’s website, http://www.seizedservers.com/ (a website created 6 days ago, likely for this operation). Now if you enter in “boxedtvseries.com,” instead of resolving to whatever numerical address it had before, it resolves to “74.81.170.110.” Of course, if you happen to know what the old number is for “boxedtvseries.com” you can still type in that number and get the old website. The Internet is deliberately decentralized in that way. Short of actually taking the computers that host “boxedtvseries.com” – computers that could be anywhere in the globe – the best the Justice Department can do is make it so that the DNS servers no longer point there when someone types in words instead of numbers.

And this has lead to one interesting hypothesis from ComputerWorld – what happens if people no longer trust the institutionalized DNS servers? There’s nothing in the architecture of the Internet to stop anyone from creating a new DNS server that resolves names differently than the DNS system does now, telling people where, for example, the real “boxedtvsets.com” is located. If they were to do this outside the jurisdiction of the United States, I don’t see how civil forfeiture (or the proposed COICA bill) could stop it. And this would create all sorts of chaos for the Internet as a whole – imagine a world where typing in the same URL on two different computers would lead to pulling up two different websites. I hope the Justice Department realizes what kind of special fire it is playing with right now by forcing DNS servers to resolve to places where sections of the public do not want them to resolve. John Perry Barlow may have been more right than we realize: we may have a domain name mutiny if we are too reckless in enforcing the law this way.

One last thought. The other big cyberlaw case of the day is, of course, Wikileaks and its dumps of classified government information. One of the great ironies of our legal system is this: to stop the Wikileaks website would take a criminal prosecution establishing a violation of a state interest of the highest order, an order so strong the Supreme Court has never found it in any leak of classified information distributed by the press. (I think that’s a good thing, by the way.) But if Julian Assange was trading in fake handbags instead of state secrets, his website could be down already though civil forfeiture. Does that seem right to you?

Update 12/3 – apparently the copyright / First Amendment dichotomy I mentioned above was noticed by none other than Sarah Palin.

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27 September 2010

In their battle with Research in Motion, countries like Dubai have sought leverage by threatening to block BlackBerry data from their networks. But Ms. Caproni said the F.B.I. did not support filtering the Internet in the United States.

24 September 2010

I’ve now had some time to read the Combating Online Infringement and Counterfeits Act (you can too). Reactions to follow, but first a quick sketch of the bill:

The bill gives the Attorney General specific powers to go after websites that are “dedicated to infringing activities.” (This is both the copyright and trademark context, but I’m going to focus on the former.) The statute defines “dedicated to infringing activities” as websites (1) “primarily designed” for trademark and copyright infringement, (2) lacking “demonstrable, commercially significant purpose or use” other than infringement, or (3) marketed by its operator to offer infringement. When taken together, these activities must be “central” to the activity of the website to meet this definition.

I used the word “infringement” above. It’s important to note that this is not speaking of traditional, primary infringement, or even established doctrines of vicarious, contributory, and inducement liability. It extends further than that, covering those “enabling” or “facilitating” infringement. (I would argue this to be further than the “knowing inducement” standard of contributory liability.) It also covers those offering or providing access to copyright-protected materials, including providing links to other Internet resources used to obtain copies. This too is an expansion of liability, though previously recognized in some lower-court opinions.

Under this bill the Attorney General has the power to proceed in rem against a domain name used by a website “dedicated to infringing activity.” The in rem nature of this is important: instead of having the lawsuit proceed against the personresponsible for the infringing activity, the lawsuit is filed over the website itself. Thus, a judgment over the property binds the world with respect to the property, instead of just binding the defendant in the particular case.

The AG must send notice to the “registrant of the domain” (if available) and published notice of the action. The lawsuit would either be filed in the District of Columbia (if the registry is outside the United States) or the district housing the registrant or registry of the domain. All court document are to be served on the “domain name registrar,” or, failing that, on the “registry.” The remedy provided is injunctive and not monetary – a temporary restraining order, a preliminary injunction, and/or a permanent injunction. All the requirements for having a court issue this injunction are tied to Rule 65 of the Federal Rules of Civil Procedure presumably require the standard demonstrations of proof for those remedies. Should a court be persuaded that injunction is appropriate, the AG can then serve the court’s order on the registrant or registry, who is then ordered to suspend operation of the website and lock the domain name. If the registry is foreign, the AG can (with a court order) tell a “service provider,” a financial transaction provider, or an advertising agent on the website to cease serving that website, effectively creating a firewall for the average American user.

The bill does provide for modification of a court order. The owner or operator of the website may petition the court to modify, suspend, or vacate the order based on evidence that it is no longer “dedicated to infringing activities” or that the order should be vacated in the interest of justice. The AG can petition for modification to expand it to cover a migratory domain name and to include additional domain names “used in substantially the same manner” as the initial site. Should the domain name registration expire, the court order automatically ceases.

As mentioned above, the AG will maintain a public listing of domains subject to this order, as well as those that the DoJ believes to be qualifying, but for which AG has not yet filed an action. The AG also must inform our Intellectual Property Enforcement Coordinator (colloquially known as the “Copyright Czar”), who will also post the affected domain names on a public website. The AG must also publish a procedure for receiving information from public about sites “dedicated to infringing activities,” and give guidance to IP-holders as to how to provide the DoJ with information to begin an investigation.

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So that’s the bill, and here are my reservations about it:

My first reaction is one shared by EFF several other groups – this is the very first time I can think of where the United States is prepared to assert its sovereign domain over the entire Internet. By proceeding in rem and going after domain name registries directly, we are leveraging the coincidental fact that most of the major top-level root domain servers are located inside of the United States, and most of the domain registration services (the GoDaddys and Dotsters of the world) are located here too. The reason for doing this is obvious: it’s expedient. The defendant may be hard to identify, located abroad, or deliberately hard to reach. Instead of going after her they can go after the severs she uses, which usually have fixed business addresses and legal departments. (I’m not quite sure if this is meant to cover to the DNS root servers or the domain name registration services themselves – more on that below.) In the rare cases where the United States does not house the addressing servers, the bill’s solution is to simply throw up a firewall, which is a pretty extreme measure.

This would not be a problem if I believed that this would only be used to go after websites solely dedicated to posting up torrents for movies, but I doubt this is the case. The terms used here seem to expand further than that. They encompass The Pirate Bay and MegaUpload for sure (and make no mistake, they are the targets of this legislation), but the bill arguably covers many more sites. This has great potential to seriously upset the balance of liability between websites and content controllers. In the SonyBetamax case we gave technology creators a wide berth, shielding from liability when a technology was capable of “substantial non-infringing uses.” Justice Breyer’s concurrence in Grokster states that the Court in Sony was looking at about 9% non-infringing use, and found that small percent to be “substantial” enough. Is 9% non-infringing use “commercially significant” enough to avoid in rem takedown here? Tumblr is a service that is largely dedicated to sharing media, often without the copyright owner’s authorization. Should they fail to show a commercially substantial use that isn’t dedicated to hosting infringing media files, could they be subject to takedown? And what about those of us that use Bit Torrent to share legally? Or use drop.io or MegaUpload simply because our email servers don’t let us send 100 MB attachments? Or use Tumblr to share media that we ourselves created? If we don’t make up a commercially significant share of the website’s population do we lose our service?

I think this liability shift is especially powerful with respect to websites driven by third-party content. We generally immunize web service providers from liability based on conduct of visitors to the site, whether it be copyright under the DMCA or libelous speech under Section 230. When proceeding in rem there is no meaningful way to distinguish between content posted by third parties and content posted by the website provider. As Public Knowledge points out, a small-scale media sharing site like a nascent YouTube could easily be taken down. Why this is so dangerous is an obvious point raised by many other critics – posting material online is an exercise of free expression, and services which aggregate many users are particularly strong forums for such expression, due to their bandwagon nature and ease of access. We should not so wantonly jeopardize these fora.

All of this is contestable, of course. But with an in rem proceeding, who exactly is going to appear before the court to debate that with the government’s attorney? The bill clearly states that the “domain name registrar” (which for reasons I note below I believe is referring the person who registers the website with a registration service like Go Daddy) receives notice in this action, and thus can appear in court to contest this categorical issuance. But the statute only requires the AG to contact the website owner using the mail and e-mail addresses provided by the registrant to the registrar. Anyone who has ever registered a domain name knows that these are often faked, as the only other time these addresses are used is in the whois information. To date, there’s been no legal consequence for feigning this information (though ICANN doesn’t like it and it may violate the terms of use with your registration service). Are you then left unable to defend your website? And what of services like Go Daddy’s anonymous registration service? Does the DoJ get to look around that? And if you today were to receive an email claiming it was from the Department of Justice and that you had to appear and defend your website’s rights, would you think it spam? Email is not generally sufficient service of process (at least in federal courts); we’re not used to receiving messages of such legal consequence in our inboxes. It may not constitutionally offend due process, but it sure does in spirit.

This is not to say that all is lost in this bill. I take comfort in the fact that this purely a remedy available to the Justice Department. Prosecutorial discretion will no-doubt mitigate these fears about sweeping up free expression and put any action into some form of greater utilitarian calculus. But Prof. Seltzer makes a good point about the private sector’s involvement in this bill – IP-owners are given an input into the Attorney General’s execution of the policy, but no similar mechanism is made for advocates for the websites. The weight of this legislation is clearly in favor of existing content owners. No wonder Hollywood is so excited about the prospects of this bill. At least the bill gives us transparency, which (ideally) should help us inform public debate over the merits of this bill’s eventual execution.

Two other, more minor, problems add to my general displeasure. First, I highly doubt this will be effective at stopping online piracy. If the allegedly infringing website is only using a service like Go Daddy to register their domain name, leaving content servers elsewhere, this is going to have little practical difference. Maybe you can’t type in “thepiratebay.org” and have it resolve to the Pirate Bay anymore. But if you are sophisticated enough to type in “194.71.107.15” into your address bar, you’ll still get the Pirate Bay. Cutting off the name server will not kill the website. The Internet is deliberately decentralized in that way. It would take active network filtering nation-wide to have the effect of blocking the Pirate Bay in the United States, which is a very drastic step indeed. But say we take that step – what’s to stop the pirates from creating a proxy server network to frustrate that means as well? Congress is trying to beat web-geeks at their own game. That is as sisyphean as it is stupid.

Second, in my opinion the bill suffers from some poor drafting. For example, who exactly does the AG give notice to under this bill? The bill carefully defines what it means to be “dedicated to infringing activity,” but other vital terms like “domain registry” and “registrant” get no clarity. When the bill speaks of the “registrant,” does it refer to the person who signs up with Go Daddy to get “mywebsite.com,” or is it Go Daddy, who has to go to VeriSign when it registers any “.com” domain name? Both parties are registering something from a registry, but with which one does the Attorney General interact? I can make an argument either way. The bill uses the term “operator” to define the person responsible for controlling the content of the site, so should we assume the website owner is the “operator,” the “registrant” is their domain name service, and the “registry” is VeriSign? On the other hand, “registrant” does appear in one other section in Title 18, referring there to the user of a web service. Should we impute a similar definition here? My guess, based on the way in which this bill distinguishes “registrants” from a “registry,” is that the “registrant” is the person who registers a domain name from a “registrar” like Go Daddy, but it’s far from certain. The bill has similar trouble trying to define who an online “service provider” is. The statute reflexively defines Internet “service provider” by its definition in 17 U.S.C. § 512(k)(1). The problem is, that section has two different definitions for service provider – either an ISP as we think of the term colloquially, or anyone who provides any service on the Internet. Would it have been so hard to pick one definition and include it in the bill?

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I said a few days ago that I agree in spirit with the bill, and I still feel the same way today. I do not follow my colleagues who categorically reject using in rem tactics to try and stop infringing activity on the Internet. I do not think cyberspace should be categorically immune from government intervention. I recognize that there will be times when we cannot reach the person, and can only exercise power over the data the person left in a server in Virginia. But going after a website for its content should be a last resort, narrowly defined and restrained in execution. I accept the view that speech which infringes copyright is not subject to First Amendment protection, but any attempt to restrain expression should only follow a full and fair adjudication of the infringement question. It should be applicable only to those services which already fit our existing doctrines of secondary infringement liability. We should not attempt to sweep so broadly without mechanisms to better protect what might get swept up as collateral damage. It is not hard to imagine a website that has important expressive value, but nevertheless is removed from the Internet or blocked in the United States due to its inducement of copyright infringement. Hell, even the Pirate Bay runs a blog.

And there is one remedy here that I will never endorse: Internet filtering. We are seriously debating installing what can only be described as a nation-wide firewall. Consider the company we would keep doing so.

15 September 2010

For more on the announced retirement of Register of Copyrights Marybeth Peters (GWU Law ’71), see Ars Technica. It’s worth noting that Peters is only the 11th Register to serve the Library of Congress, one of only two living Registers, and the second-longest serving at that position.

Oh, and dollars to dimes says David Carson will take the position if he wants it.

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28 August 2010

Today marks the 47th anniversary of the “I Have a Dream” speech. The speech needs no introduction. I don’t need to tell you what it was or who said it. We know all that by virtue of living in the United States. It is so important to our national identity that we just know it, and many cannot identify from where they learned it (save those who experienced it firsthand).

Considering its ubiquitous nature, you may surprised to know that the speech is still protected under copyright, and any use of it (barring the frustratingly narrow world of fair use) is subject to a license from the estate of Dr. King. The speech has been subject to litigation, including a 1990s challenge where CBS used a section of the speech in a documentary and did not seek a license, whereupon the estate sued for infringement. There, the 11th Circuit rejected a summary judgment motion for CBS, holding that CBS did not prove the work was in the public domain due to publication without registration and proper formalities. This matter settled out of court, so the question was never fully resolved, but today the work is largely considered protected. The Estate treats it as such, and to other potential users, that’s probably all that matters. Dr. King published the work and registered copyright shortly after the speech in 1963 (according to this SDNY case), and his estate renewed copyright in 1991, so the work will remain under copyright until 2058.

So as you look over footage from that speech today, note how little of the actual speech you hear. Often a clip from the march will run silently, or only for a second. You will probably only see one station, at most, play it, and they will probably acknowledge that they licensed it from the King estate. Those seeking to use the speech publicly in any form will need to enter into an agreement with the EMI or Intellectual Properties Management in Atlanta to use it. Fail to do so, and the Estate could decide to sue.

I see this as a societal wrong. That speech is so vital to American identity that it should be as free as our founding documents to read aloud, share, disseminate, remix, and re-envision. No organization or entity, not even the very estate of Dr. King, should be able to restrict others’ use of the speech. It is simply too large and too significant to not be freely accessed and shared. We all should be able to broadcast the speech in our own manner, and share from it extensively and without limitation.

On the other hand, our actions should not punish Dr. King (or his heirs) for creating a work so significant that it far eclipses other cultural works. Remember that copyright in America is all about creating incentives for authors and artists to create and disseminate works. It would be a perverse incentive, indeed, to afford a writer a monopoly over a sermon, and then remove that monopoly should the writer create a profoundly important sermon. Dr. King, though his estate, is well entitled to compensation.

I see a third option to balance the rights of the copyright owner and the desires of the public: the United States, on behalf of its people, could purchase the speech and release it into the public domain.

Imagine if we created an award, given periodically and with appropriate pomp and circumstance, for works of the caliber and importance of the “I Have a Dream” speech. This award would come with a substantial cash prize, and in consideration the recipient would assign copyright interest in the work to the United States. The U.S. could then inject the work into the public domain, making it free for all to use. Over time, this would build a corpus of important American works, which could be celebrated and shared throughout the country, freely, and without hesitation. The “I Have a Dream” speech, or “This Land is Your Land” (claimed to be under copyright, though disputed), or “Happy Birthday To You” (still considered under copyright, though disputed), or “God Bless America” (likely still under copyright, and manyarrangementsofwhich are actively protected), or any other cultural artifact which transcends Romantic authorship and has become vital to our cultural identity could be shared as freely as “The Star Spangled Banner,” The Gettysburg Address, or the moon landing footage (all in the public domain).

This is not without some precedent. We have a National Recording Registry, designed to preserve the primary recordings vital to our national identity. We have a National Film Preservation Board, doing the same for works of film. The quasi-public Kennedy Center recognizes a handful of artists, musicians, and comedians for their lifetime achievements in the arts. The Library of Congress is well-equipped to handle this sort of project — consider its Gershwin Prize for Popular Song. The United States could give Nobel-Prize levels of compensation for the work and still strike an equitable bargain: a substantial amount of revenue to the copyright holder, and a comparably insignificant dent in the national budget. And with such a system we would not need to wonder if a use of King’s speech was “fair,” or likely to result in a cease and desist letter. We would be at liberty to perform the speech, incorporate it into songs, broadcast or webcast the speech, restore the work and share such restorations, or play the speech in public buildings. The work would not be abandoned by this status, but canonized, and appropriately celebrated by all.

5 August 2010

The Senate and House, as predicted, appear to be pushing through a copyright bill before the end of the term. There’s not much here for those that don’t use the word “wonk” when describing their interest in the subject, but for some reason nobody seems to be writing about it at all, so I guess my blog is as good as any to collect these alterations.

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

The bill would also alter Section 205(a), which handles the way in which transfers of copyright are recorded at the Copyright Office, by including the following (in italics):

Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to the regulations established by the Register of Copyrights.

Both of these appear to give the Copyright Office wider latitude to rely on electronic correspondence for copyright affairs, which is likely to expedite efficiency and transparency, if done well. (The Copyright Office has been experimenting with an “e”-presence, but has stumbled in execution.)

2. The Manufacturing Clause is Finally Gone

Section 601 will be repealed and reserved, and the title of Chapter 6 will change from “Manufacturing Requirements, Importation, and Exportation” to “Importation and Exportation.” Also repealed are referring subsection 409(10), and the following from Section 602(b).:

In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, United States Customs and Border Protection has no authority to prevent their importation unless the provisions of section 601 are applicable. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by United States Customs and Border Protection of the importation of articles that appear to be copies or phonorecords of the work.

This removes the oft-criticized and no-longer-used manufacturing clause, which limited the ability of foreign manufacturers to import into the United States English-language copies of works, forcing such copies to be printed domestically. This has been widely criticized as an obstacle for international recognition of U.S. copyrights, and was removed of all force way back in 1986. I doubt any will mourn its passing.

3. Sublicensing is Expressly Allowed

Section 201(d)(2), governing the transfer of ownership in copyright, is amended as follows:

Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title, including the right to transfer or license the exclusive right to another person in the absence of a written agreement to the contrary.

I don’t know of any cases which found to the contrary, but by adding this language it seems indisputable that licensing a copyrighted work by default includes the right to sublicense that work, absent agreement to the contrary. Interestingly, Germany and a few other countries take the opposite tack on this issue, requiring original author consent for sublicensing, absent agreements to the contrary.

4. Old Phonorecord Publication Exemption is Not Just for Musical Works

The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical workany musical work, dramatic work, or literary work embodied therein.

Section 303(b) itself was enacted in 1997 to clarify this lingering question about publication dates (which mattered greatly before the enactment of the 1976 Copyright Act in 1978), and the 2010 Act expands this clarification beyond musical works to include anything that might have been distributed via phonorecord before sound recordings were protected.

The Copyright Royalty Judges may issue regulations to carry out their functions under this title. All regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress and are subject to judicial review pursuant to Chapter 7 of title 5, United States Code, except as set forth in subsection (d). Not later than 120 days after Copyright Royalty Judges or interim Copyright Royalty Judges, as the case may be, are first appointed after the enactment of the Copyright Royalty and Distribution Reform Act of 2004, such judges shall issue regulations to govern proceedings under this chapter.

I am unaware of anyone claiming that CRB decisions were not subject to judicial review as any agency determination might be, but I could see someone raising that argument. FYI, the constitutionality of the Copyright Royalty Judges is presently being challenged as a violation of the Appointments Clause.

6. Slight Tweak in Sound Recording Blanket Licenses

Sections 114(f)(1)(A) & (B) lay out the method by which the Copyright Royalty Board issues royalty schedules for use of sound recordings in digital broadcasts. Subsection (C) has been revised to state:

The procedures under subparagraphs (A) and (B) shall also be initiated pursuant to a petition filed by any copyright owners of sound recordings or any eligible nonsubscription service or new subscription service indicating that a new type of eligible nonsubscription service or new subscription service on which sound recordings are performed is or is about to become operational, for the purpose of determining reasonable terms and rates of royalty payments with respect to such new type of service for the period beginning with the inception of such new type of service and ending on the date on which the royalty rates and terms for preexisting subscription digital audio transmission services or preexisting satellite digital radio audio serviceseligible non-subscription services and new subscription services, as the case may be, most recently determined under subparagraph (A) or (B) and chapter 8 expire, or such other period as the parties may agree.

This alteration generalizes the terms used somewhat, and seems to be acknowledging that the § 114(f) license now extends to non-subscription as well as subscription services. Beyond that, I leave it to digital broadcast experts to forecast how this might change this (very, very messy) section of copyright law.

The balance of the bill seems to be slight typo tweaks and rearrangements to reflect these minor substantive changes. For more, see the THOMAS entry for the bill.

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To do a Jon Stewart meet-me-at-camera-3 thing for a second: Hey, ASCAP. As I’m sure our fellow music industry members at the RIAA can tell you, it’s never wise to engage in a public war against people the general public overwhelmingly like. It doesn’t do our industry any favors. But what’s far worse about what you’re doing here is you are blatantly misstating the nature of things.

Creative Commons is not about destroying copyright or artist rights – quite the opposite. CC is about allowing artists the freedom to decide for themselves exactly how much control they wish to assert over copyright. As any US copyright scholar will tell you, our scheme of copyright is all about artists and authors a limited monopoly on expression in order to encourage them to create and disseminate works. The exclusivity we give comes at a cost, however: the monopolies we grant to authors necessarily prevent the general public from doing certain forms of expression. We’re okay with this because we believe (or strive to believe) that the net result of our system is that more works are created.

Creative Commons allows us to fix a deadweight loss in the system – authors who are “over-incentivized” can, at their control and discretion, give back to the public the monopoly rights they determined are unnecessary for them to create and disseminate. The beauty of CC is that the decision is left in the hands of the artist to decide for themselves.

Now I consider myself pro-artist, notwithstanding my professed leanings in areas of copyright policy. And I’ve taken heat from my friends by standing to defend your lawsuits against bars and restaurants that do not pay their PRO fees. But I do so because I believe the ends justify the means: public performance royalties are often a necessary ingredient of the royalty-mix that allows songwriters to make a living. When an artist decides for her or himself that they don’t need a public performance royalty – say, by declaring attribution is enough through a form of Creative Commons license – they signal a contrary preference, and we should respect that decision.

At my most charitable, I see what you’re doing as being over-paternalistic, deciding that artists cannot decide for themselves what rights they need to assert in order to create their works. What I truly think is going on is you’re annoyed that Creative Commons cuts ASCAP and the other PROs from receiving fees in certain circumstances, meaning you have less of a royalty pool to dish out later (and collect administrative percentages on top of). Perhaps I am being cynical, but why else would you attack Creative Commons? It’s the same reason why you decided to claim that a cell phone ringtone is a public performance: if it is, you get paid; if not, you don’t. So don’t pass this off as an artist rights issue. To act in the artists’ interest would be to allow them the choice. What you’re doing is something else entirely.

Update: More and more folks are weighing in on this one: here’s an ad hominem piece by David Israelite of the NMPA, Gigi Sohn of PK’s response, and an assessment from Wired’s (always amazing) Threat Level blog.

Coincidentally, this week I’ve been going through William Patry’s Moral Panics and the Copyright Wars again. In that book Patry talks of how use of folk devils and hyperbolic metaphors is killing our ability to have a cogent debate on this stuff, which is essential to the development of constitutionally sound copyright policy. This present fight is proving his point all too clearly.